Dees v. Logan
282 Ga. 815
Ga.
2007
Check Treatment

DEES et al. v. LOGAN

S07G0290

Supreme Court of Georgia

NOVEMBER 21, 2007

DECEMBER 14, 2007

282 Ga. 815 | 653 SE2d 735

THOMPSON, Justice.

stаtute of repose].” While Nichols urges that the abrogation of medical malpractice causes of action by the operation of the statute of repose can produce harsh results, OCGA § 9-3-71 (b) is nonetheless within the General Assembly‘s legislative power to enact. See .

Judgment affirmed. All the Justices concur.

DECIDED NOVEMBER 21, 2007 —
RECONSIDERATION DENIED DECEMBER 14, 2007.

Lamar, Archer & Cofrin, Rоbert C. Lamar, Keith A. Pittman, Katherine A. Eichelberger, for appellant.

Owen, Gleaton, Egan, Jones & Sweeney, H. Andrew Owen, Jr., Rolfe M. Martin, Mark D. Meliski, Huff, Powell & Bailey, Anna B. Fretwell, for appellees.

Peters & Monyak, Robert P. Monyak, Jeffrey S. Bazinet, amici curiae.

S07G0290. DEES et al. v. LOGAN.
(653 SE2d 735)

THOMPSON, Justice.

We granted a writ of certiorari to the Court of Appeals in , to determine whether, under the provisions of an uninsured motorist policy, a damage award to the insured can be offset by workers’ compensation and similar benefits paid to the insured. The short answer is “no.”

Dees and his wife brought suit against Logan seeking damages for injuries suffered in an automobile collision. The jury awarded the Dees $130,000 for lost wages, $4,939 for reimbursement of COBRA payments, $10,000 for pain and suffering and $5,000 for loss of consortium. The Dees’ uninsured motorist carrier, State Farm Mutual Automobilе Insurance Company (“State Farm“), argued that it could offset the jury‘s award by amounts Dees had already received in workers’ compensation benefits ($83,200), social security disability benefits ($70,056), and a pretrial settlement with Logan‘s liability insurer ($25,000). In this regard, State Farm pointed out that its UM policy expressly prоvided that “any amount payable . . . shall be reduced by any amount paid or payable to or for the insured: (a) under any workers’ compensation, disability benefits or similar law.” The trial court accepted State Farm‘s argument and ordered that the Dees recover nothing from State Farm or Logan. The Dees appealed, and the Court of Appeals affirmed in part, holding that the trial court properly reduced the damage award by offsetting the benefits paid to Dees. In so doing, the Court of Appeals relied upon earlier decisions in which it ruled that nonduplicatiоn of benefits clauses in UM policies were enforceable.1

Georgia‘s uninsured motorist statute provides:

The endorsement or provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury or destruction of property of the insured for which he has been compensated by other property or physical damage insurance.

OCGA § 33-7-11 (i). The plain meaning of this subsection is that an uninsured motorist carrier can setoff benefits which its insured may have received to compensate for property loss. This being so, we must conclude that the legislature did not intend to authorize an insurer to setoff benefits received for personal injury. That is because when a statute expressly mentions one of many things, the omitted things must be regarded as having been deliberately excluded. ; .

When an uninsured motorist policy provision is in conflict with the cleаr intent of OCGA § 33-7-11, the policy provision is unenforceable and the statute controls. . “Exclusions in uninsured motorist endorsements cannot ‘circumvent the clear mandate of the [Georgia] (Uninsured Motorist) Act by withholding the protection required.’ [Cit.]” . Inasmuch as the uninsured policy provision in this case permits a setoff for personal injury benefits, it is in conflict with the plain mandate ‍‌‌​‌‌​‌​​‌​​‌‌​​​‌‌​‌​‌‌‌‌​​​​‌​​‌​‌​​‌​​‌‌‌​​‌‌‍of the Uninsured Motorist Act. It follows that the policy provision is void and unenforceable. Cases holding otherwise are hereby overruled.

State Farm asserts that the 2006 amendment to OCGA § 33-7-11 (Ga. L. 2006, p. 815) demonstrates the intent of the legislature to permit a setoff for damages related to personal injuries. We disagree. That amendment simply substituted “for bodily injury, loss of consortium or death of an insured” for “all sums which said insured shall be legally entitled to recover” in subparagraph (a) (1). Viewed in context, that amendment offers no insight into whether the legislature intended to allow uninsured mоtorist insurers to offset workers’ compensation benefits or other similar benefits. If the legislature did so intend, it should have amended subparagraph (i) to expressly provide for exclusions for personal injury.

We reject the notion that the legislature necessarily acquiesced in the Court of Aрpeals’ interpretation of OCGA § 33-7-11 and that, therefore, stare decisis requires this Court to affirm the judgment of the appellate court. Compare (stare decisis can be invoked with force and reason where for over 50 years legislature acquiesced in this Court‘s construction of statute enabling acquisition of title to property).

State Farm also posits that, inasmuch as Dees is not entitled to a double recovery,2 he cannot be permitted to receive workers’ compensation benefits or other similar benefits in addition to a recovery under his uninsured motorist policy. Again, we disagree. Dees is not recovering twice; and State Farm is not paying twice. On the contrary, Dees is merely recovering sums he is due from Logan, the owner of the uninsured motor vehicle, and benefits he is otherwise entitled to receive from other sources. Compare (plaintiff can recover damages from tortfeasor notwithstanding receipt of Medicaid benefits) with (collateral source rule does not require insurer to pay claimant twice). See also (tortfeasor cannot reduce liability because plaintiff received payments from othеr sources).

In passing, we note that our holding is in accord with a majority of jurisdictions which have uninsured motorist statutes that do not expressly permit or prohibit reduction clauses and which hold that offsets for workers’ compensation benefits are impermissible. See Annot., 31 ALR5th 116.

Judgment reversed. All the Justices concur.

CARLEY, Justice, concurring.

I concur fully in the majority‘s holding thаt, when damages for personal injury are awarded in a tort action against an uninsured motorist, the uninsured motorist carrier cannot set off from that recovery the amount of workers’ compensation and similar benefits ‍‌‌​‌‌​‌​​‌​​‌‌​​​‌‌​‌​‌‌‌‌​​​​‌​​‌​‌​​‌​​‌‌‌​​‌‌‍received by the insured. However, I write separately to further support the majority‘s correct resolution of the issue.

The applicable provisions of former OCGA § 33-7-11 (a) (1) required that a motor vehicle liability policy issued in this state contain “an endorsement or provisions undertaking to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsurеd motor vehicle . . . .” (Emphasis supplied.) The code does not contain any additional provision which expressly precludes the uninsured motorist carrier from asserting the right to setoff workers’ compensation and similar benefits from the insured‘s recovery of damages against the tortfeasor. However, OCGA § 33-7-11 (i) does further specify that

[t]he endorsement or provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury or destruction of property of the insured for which he has been compensated by other property or physical damage insurance. (Emphasis supplied.)

As the majority correctly notes, this approval of a limited setoff for collateral bеnefits received as indemnification for property damage implies the exclusion of any comparable setoff for collateral benefits received for other types of damage. See .

Thus, when the relevant statutory provisions are read together and harmonized, it is аpparent that, at the times applicable to this appeal, a motor vehicle liability policy issued in Georgia was required to provide uninsured motorist coverage for any damages recoverable by the insured against the tortfeasor, except to the limited extent thаt the carrier could, if it chose, exclude from coverage such property damage as had been indemnified from another source. Workers’ compensation and similar benefits are not payable to an insured as indemnification for the injury or destruction of his or her propеrty. They are payable based upon the physical injury suffered as the consequence of the uninsured motorist‘s negligence. Therefore, such benefits cannot be the subject of a setoff, since they are within the broad coverage mandated by former OCGA § 33-7-11 (a) (1) and are not subject to the narrow exclusion authorized by OCGA § 33-7-11 (i).

This construction of the Georgia statutes is consistent with existing authority. In , the dispositive issue was whether the applicable uninsured motorist law was that of Tennessee, where the insured lived and the policy was issued, or of Georgia, where the collision occurred and the injury was sustained. That determination was of critical importance because the insurer proposed to setoff the insured‘s workers’ compensation benefits, and

Tennessee law allow[ed] an insurer‘s liability for uninsured motorist benefits to be offset by any collateral benefits received by the injured person. [Cit.] . . . [However,] the Georgia uninsured motorist statute . . . does not provide for any such setoff. . . . (Emphasis supplied.)

. The conclusion reached was that the insurer was entitled to assert the setoff, because “[t]he mere fact that the two states have different laws in this regard does not mean that the Tennessee law cannot be enforced. [Cits.]” Thus, recognized that Georgia law was “different” because it did not provide for a setoff of workers’ compensation benefits.

In this case, the Court of Appeals reached the contrary conclusion, ‍‌‌​‌‌​‌​​‌​​‌‌​​​‌‌​‌​‌‌‌‌​​​​‌​​‌​‌​​‌​​‌‌‌​​‌‌‍based upon several of its decisions decided after which recognized thаt a setoff for workers’ compensation and similar benefits is permissible. See .

Where a statute has, by a long series of decisions, received a judicial construction in which the General Assembly has acquiesced and thereby given its implicit legislative approval, the courts should not disturb that settled construction. [Cits.]

. Thus, if the post- decisions cited by the Court of Appeals did, in fact, construe the relevant uninsured motorist statutes and the General Assembly thereafter acquiesced in that construction, then reliance on them would be proper here. See generally .

As the majority notes, the General Assembly did amend OCGA § 33-7-11 (a) (1) in 2006, so as to eliminate the former requirement that uninsured motorist coverage be provided for “all sums” recoverable as damages by the insured against the tortfeasor. Under the current version of the statute, the policy must contain

an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of сonsortium or death of an insured or for injury to or destruction of property of an insured under the named insured‘s policy sustained from the owner or operator of an uninsured motor vehicle . . . . (Emphasis supplied.)

Ga. L. 2006, pp. 815, 816, § 1. However, that amendment to OCGA § 33-7-11 (a) (1) was not in effect at the times relevant to this appeal and is, therefore, not applicable here. Moreover, as the majority correctly notes, even if it had been, it does not express the legislative intent to permit an uninsured motorist carrier to offset workers’ compensation and similar benefits against the damages awarded to the insured for persоnal injuries. Instead, the 2006 enactment is clearly the General Assembly‘s response to , wherein this Court held that former OCGA § 33-7-11 (a) (1)

require[d] an insurer to pay damages for the death of a person who was not covered under the policy. . . . The language of the [former] statute is plain and it is not illogical. It clearly states that the insurer is to pay “all sums which (the) insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” [Cit.] All means all, every single one. Since the insured in this case is entitled to recover damages for the death of his son against the owner or driver of the uninsured vehicle, he is entitled to recover those damages against his insurer. (Emphasis in original.)

Obviating that holding in , by limiting uninsured motorist coverage to such physical and property damage as was suffered by one who is “an insured” under the policy, is not equivalent to an authorization for a setoff of workers’ comрensation and comparable benefits. Since the General Assembly has not amended OCGA § 33-7-11 (a) (1) or any other uninsured motorist statute in any material respect, the question thus becomes whether the post- decisions relied upon by the Court of Appeals are binding authority for construing those provisions as authorizing such a setoff.

The earliest post- decision cited by the Court of Appeals is . That case correctly cited for the proposition that enforcement of the Tennessee statute would not frustrate this state‘s public policy, but the opinion then proceeded to ignore express recognition that Georgia statutes were different ‍‌‌​‌‌​‌​​‌​​‌‌​​​‌‌​‌​‌‌‌‌​​​​‌​​‌​‌​​‌​​‌‌‌​​‌‌‍in that they did not provide for a setoff. . The mere fact that enforcement of the setoff authorized under Tennessee law would not violate this State‘s public policy does not support the very different proposition that such a setoff “is not precluded by [Georgia] statute . . . .” . That holding in could not have been based upon а consideration and construction of OCGA § 33-7-11, since no provision of that statute was cited therein. Instead, the conclusion that no Georgia statute precludes such a setoff was obviously based upon the failure even to consider the applicable terms of OCGA § 33-7-11. While it is true that no statutе expressly prohibits a setoff of workers’ compensation and similar benefits, it is equally true, as had recognized, that OCGA § 33-7-11 does implicitly preclude such a setoff. A judicial decision, such as , which mistakenly construed is certainly not controlling authority on the question of the proper construction of what is in fact the relevant extant legislаtion.

The Court of Appeals also cited as authority for its holding in this case. However, that decision merely perpetuated the erroneous holding of that no Georgia statute existed to preclude such a setoff. While did cite former OCGA § 33-7-11 (a) (1), it did not mention OCGA § 33-7-11 (i). Former subsection (a) (1) and subsection (i) of OCGA § 33-7-11 must be construed in pari materia. As previously noted, there is no statute in this state which expressly prohibits a setoff of workers’ compensation and similar benefits, but OCGA § 33-7-11 (i), when construed together with former OCGA § 33-7-11 (a) (1), constitutes an implicit preclusion.

Accordingly, the majority correctly overrules such cases as failed to construe former subsection (a) (1) of OCGA § 33-7-11 together with subsection (i) of the same provision and which, consequently, erroneously held that a setoff of workers’ compensation and similar benefits is not precluded by statute. Even with legislative acquiescence, a judicial construction predicated upon only part of the relevant statutory provision is not binding ‍‌‌​‌‌​‌​​‌​​‌‌​​​‌‌​‌​‌‌‌‌​​​​‌​​‌​‌​​‌​​‌‌‌​​‌‌‍authority for the interpretation of all elements of the applicable statute. The unfortunate fаilure to follow which commenced in has now been rectified by today‘s opinion, which reestablishes that, regardless of the law in other states such as Tennessee, OCGA § 33-7-11, when properly construed in its entirety, does not allow a policy to provide for any setoff of collateral benefits that the insured has reсeived for personal injuries.

DECIDED NOVEMBER 21, 2007 —
RECONSIDERATION DENIED DECEMBER 14, 2007.

Notes

1
See ; ; . did not reach a contrary conclusion. The issue to be resolved in that case was choice of law — and the court held that Tennessee law applied. The court did not determine whether Georgia law permits an insurer to offset workers’ compensation benefits. It simply recognized that Georgia‘s statute was different from Tennessee‘s in that regard.